Tag Archives: investigations

Souter to step down “as soon as possible”

Colin Souter was about to escape the life in a goldfish bowl he had created for himself as grazing 'constable' at Upper Coll.

Colin Souter was about to escape the life in a goldfish bowl he had created for himself as grazing ‘constable’ at Upper Coll.

The Crofting Commission announced today that Colin Souter is to step down as Grazings ‘Constable’ at Upper Coll  on the Isle of Lewis “as soon as possible”.

The official statement reads:-

The Crofting Commission confirmed today that it has written to shareholders of Upper Coll Common Grazings to advise that the grazings constable will be stepping down as soon as possible.

The move follows the submission of a report from the constable, which was considered at a special meeting yesterday.  The report will also be circulated to shareholders.

In the letter, the Commission encourages shareholders to work together in appointing a new grazings committee in line with crofting legislation.

This follows on from the direction given to Commissioners by Fergus Ewing MSP last week. The decision was made by Commissioners at a Special Meeting in Brora yesterday in the absence of the Convener, Colin Kennedy, who had walked out on the earlier convened meeting that morning.

Mr Souter’s appointment was seen by me, and others as illegal. Ironically a report by the executive of the Crofting Commission to their board also considered this to be the case.

Mr Souter was also criticised for taking on an investigative role and seeking to find some sort of fault at Upper Coll rather than assuming the role of grazings clerk with the day to day management function that goes with that role.

He sought to impose the views of a minority on the majority. He liked to report his ‘findings’ on a regular basis to the press.

Whilst Mr Souter claimed he was independent from the Crofting Commission it was clear that they were working hand in hand and indeed, on the face of it, Mr Souter was simply a Commission puppet.

The vast majority of shareholders at Upper Coll will be relieved by this latest news.

However, they may not be celebrating just yet. At least not until they see how long “as soon as possible” turns out to be.

A new committee has already been elected by the shareholders and the Crofting Commission would do well to simply accept that committee rather than insisting on further procedure, possibly involving Mr Souter, to achieve the very same end result.

Brian Inkster

Image Credit: Police Academy © Warner Bros

 

The Scottish Farmer adds balance to the tales of the Upper Coll ‘Constable’

the-scottish-farmer-logoLast week I commented on how the letter from Colin Souter, the Grazings ‘Constable’ at Upper Coll, to shareholders was no ‘gamechanger’.

This week The Scottish Farmer has redressed the balance by publishing the views of the majority of shareholders at Upper Coll which counter the allegations made by Colin Souter against them.

They also published a letter from me on the topic which they asked me to edit down in size prior to publication. I will reproduce here the longer version that I originally supplied them with:-

Sir – I was somewhat bemused by the headline in last week’s Scottish Farmer. The letter from Colin Souter, the grazings ‘constable’ appointed by the Crofting Commission, to shareholders at Upper Coll Common Grazings is certainly no ‘gamechanger’.

Had your reporter sought to verify this sensationalist piece of propaganda via the former committee members at Upper Coll or myself he would have received a very different take on it.

Firstly, it should be made clear that many consider Mr Souter’s appointment as a grazings constable to be illegal. Donald Rennie explained clearly and in detail why in a letter published by you some weeks ago. It subsequently transpired that a report produced to the board of the Crofting Commission by their Chief Executive, Catriona Maclean, made it clear that grazings constables could not be legally appointed where a grazings committee is removed from office by the Commission. It would therefore appear that the board of the Crofting Commission acted contrary to legal advice given to them and appointed a ‘constable’ who has no standing in law.

Also, even if Colin Souter had been appointed legally as a grazings constable that role is not (despite the name) in law an investigative one but one that simply takes on the duties of day to day management of the common grazings on behalf of and in the interests of the shareholders.

Colin Souter, a retired police chief inspector, seems to be under the misapprehension that he has been brought out of retirement to utilise his police skills. He even states on his LinkedIn profile that he is “engaged to support Scottish Government NDPB Crofting Commission, in investigative and reporting activity”. He has no remit of the kind and if he has actually been given such a remit then serious questions should be asked regarding the conduct of the Crofting Commission over and above the fact that, in the first place, they knowingly appointed him when they knew that legally they couldn’t.

It appears that the Crofting Commission are on a fishing expedition. They removed from office the former committee at Upper Coll purely on the basis that they had produced 5 years of financial statements prepared by an accountant rather than 5 years of “audited” accounts as unfairly and unjustifiably demanded by the Commission. This was met by overwhelming incredulity on the part of onlookers. Now the Commission are seeking to justify their actions on other grounds. They have sent in a former police inspector to find something, anything, to make everything alright again for them.

Colin Souter appears to have carried out the bidding of his masters. He has trawled through records of the Upper Coll Common Grazings going back to 2008 if not before looking for misdemeanours. This is well out with the 5 year ‘audit’ period the Crofting Commission initially concerned itself with.

Colin Souter has compiled a list but that list is of no significance. Some of it is petty in the extreme such as highlighting one typographical error on the part of the accountants instructed by the former committee in the financial statements that the Commission had not even been willing to look at. He has claimed that monies were contributed to upgrading a road in 2008 when this is denied by shareholders and even if it were true so what? He decries the spending of £520 on feu design work to allow crofting families in the township to remain in the township by allocating to them house sites on land that was not much use for grazing purposes. Any costs associated with that would be more than recouped when house sites were sold and compensation on resumption received. He does not understand that.

What Colin Souter also does not appear to understand is that a new grazings committee is elected every three years. Most of his accusations relate to the activities of the committee of 2008/09. There have been a further three committees elected since then. Even if what the grazings committee of 2008/09 did was wrong (and there is no evidence to suggest that it was) it does not justify the Crofting Commission removing from office a committee only elected in 2015.

Colin Souter claims there is nothing in the Crofters (Scotland) Act 1993 that permits shareholders funds to be used to pay solicitors. What nonsense. A right for crofters to instruct lawyers does not need to be contained in tablets of stone within the Crofting Acts. It is a fundamental human right. Try the Magna Carta for starters.

It is also of course rather ironic that a grazing ‘constable’ whose legality has been questioned from the outset is stating left, right and centre what he considers the law to be and how he considers former committees to have breached it. Presumably in circumstances where he has not actually sought legal advice on such pronouncements because he doesn’t consider expenditure on legal advice by a grazings committee to be legal!

The situation with the grazings ‘constable’ at Upper Coll has become farcical. I will be expressing my concerns to Fergus Ewing MSP, as cabinet secretary responsible for crofting, about this illegal ‘constable’ being allowed to wreak havoc by the Crofting Commission. Mr Ewing has already had to rein in Convener Colin Kennedy. Now it is time for him to rein in another Colin.

Brian Inkster

Inspector Constable

 

Inspector Constable

I think I have found a typographical error in the accounts!

The letter from Colin Souter, the purported Grazings ‘Constable’ at Upper Coll, to the shareholders of the Upper Coll Common Grazings demonstrated once more the mistaken belief that he is under that his role is an investigative one.

He states in the letter:-

It has been necessary to research records to establish the facts and finances from historical records in order to ensure shareholders’ interests are properly protected.

Had he been legally appointed he may have required to do that to get up to speed with what went on in the township to then carry out his appointment to:-

administer the Upper Coll Grazings Regulations for a period of six months… with the like powers and duties of a Grazings Committee.

That role does not involve investigating the past eight or more year history of up to four or more grazings committees  with a view to castigating them for minor misdemeanours and accusing them of illegalities with no evidence in fact or law to justify such action.

He may be a retired Chief Inspector of Police but the title of Grazings ‘Constable’ does not give him the same powers and responsibilities he once had when a boy in blue. The Convener of the Crofting Commission, Colin Kennedy, possibly mistakenly believes that it does.

Colin Souter was specifically advised by the Crofting Commission that his:-

principle responsibility as Constable will be to discharge any outstanding actions required to ensure the duties imposed under the Crofting Acts and the grazings regulations are fulfilled.

This was to “be a short term measure” until “any outstanding actions are discharged“.

It would appear that he has not actually sought to discharge those outstanding actions but instead has gone on a fishing expedition to try and justify for his masters his illegal appointment. Did someone in the Crofting Commission give him this illegal remit? If so who and why?

Mr Souter is certainly firmly of the view that this is his role: boldly stating on his LinkedIn profile that his current appointment, via Colin Souter Consulting, is that he is:-

Engaged to support Scottish Government NDPB Crofting Commission, in investigative and reporting activity.

Hmm… He is not appointed to support the Crofting Commission: He is appointed to support the shareholders in the Upper Coll Common Grazings. He is not appointed “in investigative and reporting activity”: He is appointed to “administer the Upper Coll Grazings Regulations”.

So even if he was legally appointed he is acting illegally!

In my next post I will look at the very cosy relationship between Mr Souter and the Crofting Commission and/or their Convener which makes this sorry story all the worse.

Brian Inkster

Image Credit: Inspector Clouseau in The Pink Panther Films © United Artists

Croft Wars: Return of the Committee

Croft Wars - Return of the Committee

“Remember, a crofter’s strength flows from the croft. But beware. Anger, fear, aggression. The dark side are they. Once you start down the dark path, forever will it dominate your destiny.”

On the back of revelations that the Scottish Government do not accept the way the common grazings debacle has been handled by the Crofting Commission the shareholders of Upper Coll are fighting back into power.

The Upper Coll Grazings Committee were put out of office by the Crofting Commission for not producing 5 years of “audited” accounts but instead producing 5 years of financial statements prepared by an independent accountant.

The Grazings Committee were ‘replaced’ by a Grazings Constable that I, and others (including bizarrely the Crofting Commission themselves) consider to be illegal.

Now the shareholders at Upper Coll have said enough is enough and the majority of those present at a meeting on 25 August 2016 (there being no objections) have issued a statement that calls on the resignation or dismissal of Convener, Colin Kennedy, and Commissioner, Murdo Maclennan. They state that they consider the Grazings Constable to have been appointed illegally and that they will be holding a meeting to nominate and elect a grazings committee. They want their bank account back (the grazings constable having wrestled control of it away from them).

Their statement reads:-

Return control of Upper Coll Grazings to shareholders vis a vis our democratically elected Grazing Committee.

Return our bank book.

The evidence is overwhelming that the Crofting Commission have acted out-with their powers, their guidelines and legal advice in dismissing the Upper Coll Grazings Committee and imposing a constable, who, while purporting to act for shareholders, seems to see his role as acting for the Crofting Commission in finding fault with democratically taken decisions over many years.

We have evidence that he has been investigating our decisions over many years by contacting, without our knowledge or permission, public and private organisations, in order to try and retrospectively find reasons for the Crofting Commission’s actions, which were out-with their own guidelines and have been the subject to criticism from the highest levels of the Scottish Government and legal profession.

We demand to know what gave the Commission the power to take over our bank account. We demand to know the mechanism which allows any organisation the power to take over and delete democratically appointed signatories to a bank account without the signatories knowledge or permission.

We reject the constable’s view that he has the support of the majority of shareholders. He has mistaken reluctant co-operation for approval.  We agree with all the legal views, apart from the Commission’s, that he has been illegally appointed, and that the Commission made no attempt to elect a committee before they appointed him.

We support the guidelines adopted by the Crofting Commission on 27 April 2015 where they state “it does not appear that the Commission can directly appoint a constable as part of a disciplinary process where a committee is not carrying out its duties.” As a result, we call on the Commission to acknowledge their wrong-doing in imposing a Constable on the Upper Coll Township contrary to their own guidelines and apologise for this to the Upper Coll Shareholders and withdraw the current illegally appointed Constable.

We demand to know what rights an illegally appointed constable has to use village documents, obtained using the threat of legal action, for purposes other than which they were intended, by supplying information to an outside body which states it takes nothing to do with grazings committee’s finances.

We support the views of the Minister for Crofting, and demand that the Commission compensate Upper Coll Grazings for making us disburse monies, when even the Government states it was out-with their power to do so. We also demand that the Commission and/or Constable compensate the village for loss of money through grant schemes such as Agri-environment etc which were not applied for as a result of the dismissal of the Committee.

We support the overwhelming vote taken at the recent meeting in Stornoway of the Scottish Crofting Federation in calling for the resignation of Convener Colin Kennedy. In his refusal to resign we ask the Government to dismiss Mr Kennedy from a position he has used to further his own ends and which he has used to embarrass the Government.

We also call for the resignation or dismissal of our local commissioner Murdo Maclennan as he has done nothing to assist the Upper Coll Grazings when asked to do so on a number of occasions. His contribution in the whole matter has been questionable to say the least.

We support the return to the democracy we had before the dismissal of the Upper Coll Grazings Committee who had complied with all the demands made on them by the Crofting Commission.

We propose a meeting of shareholders on Saturday 10th September at 7pm to nominate and elect a grazings committee. We do this in accordance with the Crofting Commission’s own guidelines as laid out in Annex A for Policy in Development Paper No 6.

We call on the Commission to apologise for the stress caused and the public querying of “financial irregularities” even after they had properly independent accounts presented to them, which showed there was no such “irregularity”.

There is overwhelming evidence that the Commission’s conduct has been improper, outwith their own guidelines and in our case vindictive, draconian, and illegal.

We call on the Minister to help us get our bank account back, support us having an elected grazings committee back in place immediately, define what the role of the Commission is and how it should keep to its own public and legal guidelines to the same detail as it requires of voluntary grazings committees.

It was reported on Hebrides News that a Crofting Commission spokesperson said:-

Following an investigation under the Crofting Act the grazings committee in Upper Coll were removed from office on 14 April 2016.

Subsequently, the Crofting Commission received a request from the former grazings clerk, stating that there were a number of issues that, in the view of shareholders, required immediate attention and asking the commission what they intended to do to resolve the issues highlighted.

The commission discussed this matter at a meeting on 9 May 2016 and considered all of the options available to them.

Given the request for immediate action and in order to protect the interests of all shareholders the commission decided to appoint a constable in terms of section 47(3) of the Act.

The grazings constable is now nearing the end of his appointment following which the shareholders can appoint a committee of their choosing.

The Commission told Hebrides News that it could not give further details as the matter was the subject of court action. Certain committee members who were removed from office at Upper Coll appealed the decision of the Crofting Commission to the Scottish Land Court. There is currently debate before the Land Court as to whether or not the court has jurisdiction to hear such an appeal and a decision on that preliminary technical matter is awaited.

View from the Crofting Law Blog

It seems to me to be very strange indeed that on the back of a massive U-Turn regarding the appointment of a grazings constable at Mangersta, revelations that the Crofting Commission knew themselves that the appointment of a grazings constable, in these circumstances, was illegal and a rebuke from Fergus Ewing MSP over their handling of the affair that the Commission persists with the notion that a ‘constable’ exists at Upper Coll.

All indications are that they so persist in the hope that the constable will unearth some wrongdoing that will possibly justify his appointment in the first place! However, you can never justify a step that by all accounts (including their own) was illegal in the first place.

As recently as 17 August Commissioner Murdo Maclennan stated that:-

We have got a Constable who is working with crofters in the village… and… and… I am finding out he is working well with them.

Clearly a statement that is very much at odds with what the crofters in the village are actually saying.

The Crofting Commission need to put this mess that they have created to bed. Their failure to do so does not sit well with their apparent support of the position of the Scottish Government i.e. that the Commission got it wrong over the question of disbursement of funds – the very issue that resulted in the dismissal of the Upper Coll Grazings Committee and the illegal appointment of a grazings constable.

Does, however, the statement by the Crofting Commission spokesperson that:-

The grazings constable is now nearing the end of his appointment following which the shareholders can appoint a committee of their choosing

mean that the Crofting Commission perhaps do see the matter being put to bed shortly by simply the current term of an illegal appointment coming to its natural albeit illegal end?

In the absence of any early resolution of the matter by the Crofting Commission, and a Land Court action in hand that could rumble on for some time yet, it does not seem unreasonable for the shareholders at Upper Coll to be making the statement they have and taking the action intended to appoint a committee to manage their affairs sooner rather than later.

However, the ‘grazings constable’ of Upper Coll, Colin Souter, appears to be fighting back. I will look at his stance on the matter in my next blog post.

Brian Inkster

Image Credit: Star Wars: Episode VI – Return of the Jedi ©  Lucasfilm Ltd

Is the Crofting Commission a Tribunal?

Is the Crofting Commission a tribunal?

Order, order. Let the trial commence.

The Scottish Government have been looking for views on draft regulations prepared by them to  remove the Crofting Commission from the list of tribunals in the Tribunals (Scotland) Act 2014.

I have urged the Scottish Government to exercise caution in removing the Crofting Commission from the list of tribunals in the Tribunals (Scotland) Act 2014. I consider that such a move may be premature pending the outcome of an investigation into the Crofting Commission’s decisions to remove grazings committees from office.

The Scottish Government’s call for views as part of their consultation reads:-

The Crofting Commission is currently listed as a tribunal under schedule 1 of the Tribunals (Scotland) Act 2014 (the 2014 Act). The tribunals listed in Schedule 1 of the 2014 Act were taken from a report by the Administrative Justice and Tribunals Council (AJTC), which listed tribunals they considered to be devolved Scottish tribunals. The AJTC was a UK body (with a Scottish Committee) established by the Tribunals, Courts and Enforcement Act 2007.

The AJTC’s remit was defined in statute as having to keep the administrative justice system under review and report on the constitution and working of listed tribunals. At that time Ministers were minded not to remove the Crofting Commission’s status as a tribunal so as to keep it within the supervisory remit of the AJTC.

The AJTC was abolished in 2013 and the successor body in Scotland did not undertake the supervisory role carried out by them.  As there is no longer a supervisory body and the Scottish Minister’s view that the Crofting Commission is not a tribunal in the true sense of the word we are proposing to remove them from the list of tribunals in the 2014 Act.

If there is no longer a supervisory body for tribunals and the Scottish Government previously thought that the Crofting Commission should be supervised it is perhaps no wonder that we are where we are at due to lack of supervision!

The Faculty of Advocates have stated that they agree with the reasoning behind the Scottish Government’s plan to do so. However, I am of the view that the Faculty of Advocates are perhaps at a disadvantage in not seeing at the coalface how the Crofting Commission are actually handling their decision making process and aspects thereof that make them very much a tribunal, but one that appears to be out of control. This is certainly the case with regard to the recent removal by the Crofting Commission from office of three grazings committees.

Last week I submitted my own response to the Scottish Government’s consultation on the matter. It reads:-

Whilst it is stated that it is the “Scottish Minister’s view that the Crofting Commission is not a tribunal in the true sense of the word” recent events would suggest that the Crofting Commission is in many respects acting as a tribunal but without the procedures, checks and balances that one would normally associate with a tribunal.

The Crofting Commission has been using the power vested in it under and in terms of section 47(8) of the Crofters (Scotland) Act 1993 to remove grazings committees from office. There have been three such removals since December 2015.

This has created a lot of controversy with allegations of abuse of power and calls for an investigation of the Commission.

It is submitted that in taking action to remove grazings committees from office the Crofting Commission has been acting as a tribunal.

However, it would appear that no proper procedures, as would be expected from a tribunal, have been followed by them in so doing.

Article 6(1) of the European Convention of Human Rights and Fundamental Freedoms (ECHR) provides:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

Where the Crofting Commission is determining a civil right or obligation it must ensure that its processes are Article 6(1) compliant.  There are three key aspects to this (1) Security of tenure of the members; (2) Absence of bias amongst the members of the tribunal; (3) Absence of procedural unfairness.

It is considered that the manner in which the Crofting Commission has carried out its decision making under the said section 47(8) was non-compliant and, indeed, that the said section 47(8) is not ECHR compliant.

More worrying still is that the Crofting Commission are currently arguing that an appeal of a decision made by it under the said section 47(8) cannot be brought before the Scottish Land Court. If this is correct (and a decision on this procedural technicality is currently awaited from the Scottish Land Court) then the only right of redress may be judicial review via the Court of Session.

Given all of this it would, in my view, be very unwise to remove at this stage reference to the Crofting Commission from the Tribunals (Scotland) Act 2014. It may well be that Scottish Ministers in considering the alleged abuse of power within the Crofting Commission might want to consider the possible benefits of utilising the Tribunals (Scotland) Act 2014 to remedy some of the issues and problems actually highlighted above. Of course there may be other ways of achieving the same result.

In all the circumstances it is considered premature, at the moment, for the Tribunals (Scotland) Act 2014 to be amended in any way that would exclude the Crofting Commission therefrom.

Brian Inkster

Research Credit: I am indebted to Alistair Sloan for researching, at my request, the detail of the Tribunals (Scotland) Act 2014 and the ECHR aspects involved.

The Chief Grazings Constable

he Chief Grazings Constable - Top Cat at the Crofting Commission

The ‘Top Cat’ misunderstands the role of a Grazings Constable

The Convener of the Crofting Commission, Colin Kennedy, was apparently at one time a Grazings Constable.

In 2007 he responded to comments online on the BBC Island Blogging site:-

I was the grazing constable on Arinagour Common Grazing, a post with specific duties, one of which was to advise of any potential problems on the grazings. This I did on two occasions. First one was relative to your property, Second was relative to the First Port Of Coll. Both properties were on the market and for sale. My function was to alert those involved including the Crofters Commission of potential problems regarding the status of the land. I have never stated that any property was on the Common Grazing, however it is my view that various areas of the grazing are now occupied by various people.

That is not a specific duty or function of a Grazings Constable under and in terms of the Crofters (Scotland) Act 1993.

Perhaps this misunderstanding of the role of a Grazings Constable, from the top of the tree at Great Glen House, is why we have purported ‘Grazings Constables’ thinking their role is an investigative one. It isn’t. Other than, perhaps, the five yearly duty to report to the Crofting Commission on the condition of the Common Grazings and crofts with a share in the Common Grazings.

Brian Inkster

Image Credit: Top Cat © Hanna-Barbera / Warner Bros. Animation

Reports from a ‘Grazing Constable’

 

Reports from a Grazings Constable

The ‘Grazings Constable’ was under the false impression that he was a Police Constable come Court Reporter!

One of the more surprising episodes of ‘The Common Clearances‘ has been the issuing of press releases by the ‘Grazing Constable’ (illegally appointed, in my opinion and the opinion of others) of the Upper Coll Common Grazings.

To my knowledge that ‘Grazings Constable’, Colin Souter, has issued three such press releases to date. I now reproduce those here, with my comments on each added.

‘Grazing Constable’ Report #1 – 12 June 2016

I write briefly in connection with the Common Grazings at Upper Coll, having been appointed as Constable in recent weeks, by the Crofting Commission.

I should firstly stress such appointees are independent of the Commission. One of the main functions is to assume the role and responsibilities of the former Committee, representing the interests of the Crofters, whilst moving as swiftly as possible back to a situation of normality, with crofters being collectively in control of managing their own interests.

I am confident readers will appreciate the resolution to current difficulties will not be achieved overnight. I note there has been much interest, speculation and comment made on behalf of individuals who, I acknowledge, feel genuinely aggrieved with decisions the Commission has made.

On the other hand, it is only right and proper that the Commission, as a public body, should not comment on the specifics of any individual case.

Preliminary legal proceedings are currently underway at the Scottish Land Court, where it remains to be decided if the Appeal against Commission decisions will progress to the next stage. An Interim Interdict application at Inverness Sheriff Court to prevent the appointment of a Constable and further action by the Commission, was heard and refused.

It is likely that the process of the Land Court Appeal, if progressed, will take some considerable time to conclude. I will not be formally commenting in the media on the specifics of matters at Upper Coll, nor in relation to any single individual.

I do however wish to publicly acknowledge and thank those individuals at Upper Coll and elsewhere who have already contacted me since my appointment, to firstly share a collective view that there are matters at Upper Coll which need to be addressed and secondly to voice their support for a co-operative resolution over the coming weeks and months. All impartial observers must surely agree it is in the best interests of all parties to co-operate, to ensure the interests of all the crofters at Upper Coll are and continue to be properly protected.

Comment on ‘Grazing Constable’ Report #1by the Crofting Law Blog

Why, I wonder, did Colin Souter feel it necessary to issue such a statement? Was it because the Crofting Commission were staying silent on the matter? Did they sanction/encourage this statement?

How independent can Colin Souter really be? Did the Crofting Commission not provide him with a list of their ‘concerns’ for his investigation?

He has apparently stated to the shareholders at Upper Coll that his role is an investigative one. Nothing in the Crofters (Scotland) Act 1993 gives him such power other than, perhaps, the duty to report to the Crofting Commission on the condition of the Common Grazings and crofts with a share in the Common Grazings.

If investigations were required concerning any alleged financial impropriety on the part of the former grazings committee that would have been a role for the actual boys in blue and not for a retired police Chief Inspector who appears to think he, once more, has powers he once did. He does not.

If legally appointed, which is disputed, Colin Souter simply has to take on the role of committee and clerk. He is responsible to the shareholders. His role is purely administrative.

‘Grazing Constable’ Report #2 – 23 June 2016

On the evening of 22 June the Constable of the Upper Coll Common Grazings chaired a meeting of shareholders at Tong Village Hall. The meeting, which was well attended, discussed a number of issues and during the closed part of the meeting, the Constable, Mr Colin Souter shared a level of detail around issues and concerns which was clearly unknown to many of those present, prior to the meeting.

Mr Souter, a retired police Chief Inspector explained to the meeting that his appointment followed a communication to the Commission by the former Clerk to the Grazing, highlighting that 12 points of business needed to be addressed as soon as possible.

Mr Souter also explained that the Crofting Commission, as a public body, is unable to comment in the media on issues relating to specific individuals and their conduct but that being independent of the Commission, it was appropriate for him to share more information with the shareholders affected. At the meeting, he received further joint intimation in writing from Upper Coll shareholders, of their dissatisfaction with the conduct of the former Committee and will determine in due course whether that should be considered separately from other matters currently under investigation.

The meeting acknowledged the current position as laid out and discussed a constructive way forward, with a revised set of draft local Grazing Regulations being circulated by the Constable to all shareholders at Upper Coll to replace the current Regulations which date back to 1987. Mr Souter is also inviting contributions and comment more widely, from the Scottish Crofting Federation and National Farmers Union Scotland, as representative bodies, in an effort to secure a wide consensus of agreement. He intimated to the meeting that he was, very reluctantly, being forced to consider Court action as a last resort, in order to recover the Committee records from the former Grazings Clerk. A large number of those shareholders present expressed the view that withholding the records was not helping, declaring that it was acting against the interests of the shareholders and instead invited former Committee members to bear the cost of the Court action, should it go ahead.

The meeting closed on a positive note with an expression of thanks to Mr Souter, from the floor, for an open, informative and well-run meeting.

Mr Souter later said, “I appreciate there is a wide body of interest in events here at Upper Coll. I would like to publicly express my own thanks and appreciation to Upper Coll shareholders able to attend the meeting tonight, for their positive contributions and their willingness to begin moving forward to the point where a new Grazing Committee can be elected. Whilst that outcome is still in the distance, it has moved significantly closer, with a clearer path now defined, and shareholders having a better understanding of the concerns and the issues which brought us to where we are now.”

Note to Editor – the Upper Coll Grazings Committee was removed from office by the Crofting Commission on 15 April after failing to adequately address concerns raised by the Crofting Commission about the manner in which aspects of its business were being conducted, including the content and presentation of financial information reported to shareholders. On 16 May, some former committee members made an unsuccessful attempt to interdict the Crofting Commission from further action at Upper Coll. This was followed by submission of papers to the Scottish Land Court, seeking to Appeal against the Commission’s decision to remove them from office. The Land Court is currently awaiting submissions on jurisdiction from both sides, to help determine whether it can hear the Appeal. If the jurisdiction argument is won, the case will become sub judice until eventually concluded.

Comment on ‘Grazing Constable’ Report #2 by the Crofting Law Blog

I wonder if Mr Souter thinks that all grazings clerks should be issuing press releases about shareholders meetings held throughout the crofting counties? Local newspapers could have sections devoted to ‘Common Grazings Reports’ instead of, or in addition to, their usual ‘Court Reports’!

Where did the “issues and concerns” that Mr Souter had to share come from? I trust not from the Crofting Commission that he is apparently independent of?

Interesting that the Crofting Commission cannot comment on matters arising to the media but Mr Souter can. Has he therefore become their spokesman and if so how does that enable him to retain the supposed independence that he claims to have?

Mr Souter refers to “matters currently under investigation”. As commented on by me in connection with his first Report, his role is not an investigative one but merely an administrative one and then only if his appointment was legal which I, and others, maintain it is not.

Why was Mr Souter circulating new Grazings Regulations and who had drafted them and on what basis?

It would seem unusual for a Grazings Clerk to seek views from the Scottish Crofting Federation or the National Farmers Union Scotland on Grazings Regulations specific to a particular grazings.

Court action by a potentially illegally appointed ‘Grazings Constable’ to recover documentation he might have no right to hold would have made for interesting debate in the Sheriff Court! A suggestion that those against whom such an action was to be raised should fund the raising of the action is absurd to say the least.

Why is the election of a new Grazings Committee in the distance? What is preventing that happening sooner rather than later?

Is it perhaps in Mr Souter’s personal interest to delay the election of a new Grazings Committee. The longer he remains in ‘office‘ the longer he receives an income from the arrangement – albeit potentially an illegal arrangement that he should not actually be receiving a penny for.

Mr Souter states that “the Upper Coll Grazings Committee was removed from office by the Crofting Commission on 15 April after failing to adequately address concerns raised by the Crofting Commission about the manner in which aspects of its business were being conducted, including the content and presentation of financial information reported to shareholders.”

However, the only reason actually given by the Crofting Commission for the ultimate removal from office of the grazings committee was the failure to produce to them five years ‘audited’ accounts. The grazings committee produced financial statements produced by accountants. The irrationality, inconsistency and departure from legal advice obtained by the Crofting Commission on this point is one I will return to in future posts on this blog.

‘Grazing Constable’ Report #3 – 12 July 2016

Upper Coll shareholders met again on 11 July at a meeting chaired by the Grazings Constable, Colin Souter, who was appointed by the Crofting Commission in May. At this second meeting, shareholders covered a busy Agenda on a range of topics, including the resolution of a long-standing issue on the access of a bull owned by two shareholders, on the common grazings. Shareholders accepted the pragmatic resolution suggested by the Constable, which preserves shareholders rights to graze livestock but at the same time, acknowledges the responsibilities that go with these rights.

Shareholders also voted in favour of a revised set of Grazing Regulations which would encompass key elements of the previous regulations which dated back to 1987. Mr Souter hoped the final draft of the document which had already been subject to wide-ranging consultation would be ready to send to the Crofting Commission for approval, in the next few weeks. During a candid and honest discussion, some of those present, including former Committee members advised they had been entirely unaware of the existence of the 1987 Regulations.

After the meeting, Mr Souter said, “The key to progress here is an acceptance from shareholders that good Regulations make it easier for shareholders and for Committees to interact and minimise the potential for friction or conflict. We are nearly there, in terms of a finished product and whilst there are still a number of other issues for me to resolve with shareholders, we are steadily moving in the right direction. I am grateful for the support shown by shareholders this evening, in voting to move ahead.”

A number of other issues, including finances and areas of activity permissible for a Grazings Committee or Constable on behalf of shareholders, under the 1993 Crofting Act were explored in a closed session. No date was set for the next meeting, with Mr Souter indicating he would distribute a final updated draft set of Regulations amongst all shareholders. And once approved by the Commission, every shareholder would receive a personal copy of the revised Regulations.

ends

Note – Mr Souter is a retired police Chief Inspector, appointed to the role of Constable at Upper Coll after the previous Committee were removed from office by the Crofting Commission. Following their removal, it was reported to the Commission that shareholder business remained outstanding and unresolved. Whilst he is appointed by the Commission, Mr Souter has successfully gained acceptance that he is independent of the Commission in all his decision-making.

Comment on ‘Grazing Constable’ Report #3 by the Crofting Law Blog

I asked shareholders of the Upper Coll Common Grazings for their views on this latest Report from Colin Souter. Here is a selection of comments received from them:-

  • The new regs would certainly have to come before shareholders again before being submitted. There will be nothing to stop us bringing in further changes at a full meeting of shareholders at a later date if that is needed.
  • The Grazings Regulations are at the “discussion” stage and still have much work to be done on them. There was no revised Regulations issued with no mention of changes some of us suggested. They are far from being at a stage for presenting to the Commission.
  • The constable has thus far refused to protect the interests of shareholders by bringing any scrutiny to bear on the  Commission’s own dubious actions of the recent past. This goes to prove that he is not wholly independent of the Commission and shows that he who pays the piper calls the tune.
  • The majority of shareholders are still of the view that the position of Constable has been illegally imposed on the Upper Coll Grazings. These shareholders do not have any personal prejudice against Mr Souter but it is his position they question.
  • Shareholders were of the view that the Constable should be working “for” the shareholders and should therefore be working to see that some of the injustices done to the previous Committee are redressed. As he seems to be investigating the work of the previous committee then this “investigative” role should also be targeted at the Crofting Commission’s actions.
  • The minute of meeting of the 11th should also clearly show that we considered that the Commission had erred greatly in dismissing a democratically elected voluntary committee when they had legal obligations instead to advice and support it in the first instance. We suggested that this is going to be costly to the Commission.
  • The meaning of “audit” given by the Constable is not one shared by the vast majority of shareholders.
  • It is felt by the majority of shareholders that the term “financial irregularities” used by the Commission in relation to the Upper Coll Grazings Committee should be withdrawn and an apology issued to the committee by the Commission.
  • Mr Kennedy’s continued presence as Convenor of the Crofting Commission is in the opinion of the majority of shareholders untenable.

So clearly a different slant on things from the propaganda issued by the ‘Grazings Constable’. This demonstrates the nonsense of the whole situation.

Why is Colin Souter seeking to introduce new regulations? What is wrong with the existing ones other than perhaps the use of the word “audit”, which has caused much of the problems encountered by the former committee in their dealings with the Crofting Commission?

The former grazings committee were actually in the process of amending their regulations prior to being removed from office by the Crofting Commission. Why did the Crofting Commission not allow them to amend the regulations as they wished to do so?

Are the Crofting Commission influencing the new regulations proposed by Colin Souter? Do these new regulations follow the latest template promoted by the Crofting Commission which do not actually reflect the law as set out in the Crofters (Scotland) Act 1993?

Mr Souter refers to his “decision making”. What ability does he actually have to take decisions that are contrary to the wishes of the shareholders?

Mr Souter states:-

No date was set for the next meeting, with Mr Souter indicating he would distribute a final updated draft set of Regulations amongst all shareholders. And once approved by the Commission, every shareholder would receive a personal copy of the revised Regulations.

This suggests that Mr Souter is going to finalise the draft Grazings Regulations without necessarily calling a meeting to approve them. He appears to simply be planning to get the approval of the Crofting Commission. If this is indeed the case it is outrageous.

However, it should always be borne in mind that Mr Souter’s appointment was, in my view and the view of others, illegal and any action taken by him is simply null and void.

Brian Inkster

Back to the Future of Crofting

Back to the Future of Crofting

But Doc, nothing has changed in 10 years!

If you were to travel back in time 10 years ago to the day you would find a headline in The Scotsman that read ‘MSPs heap pressure on Crofters’ Commission with criticism of bill‘.

It was 5 July 2006 and on that day the Scottish Parliament’s Environment and Rural Affairs Committee released its findings on the Crofting Reform Bill after taking evidence at five meetings that year.

Some salient points from The Scotsman’s report from then:-

Critics of the commission during the evidence-gathering sessions included the National Trust for Scotland, which said the commission’s work is regarded as “inconsistent and ineffective”. The Scottish Crofting Foundation also gave an example of the “long-term regulatory failure” in one township where 11 out of 19 croft holders are absentees despite demand from prospective new entrants.

The report adds: “The committee was struck by the range of negative comments and the depth of frustration and long-standing dissatisfaction expressed by witnesses about the commission’s practice.”

It also said it was “astonished” a proper register of crofts has not been produced despite it being a statutory obligation on the commission for over 50 years.

Rob Gibson, the SNP’s land reform spokesman, said the bill offers no vision for the future of crofting and said successive governments had failed to ensure the commission does it job.

The report in The Scotsman also mentioned Brian Wilson, the former Government Minister, saying of the report:-

The whole thing has turned into an indictment of the Crofters’ Commission and its failure to implement its regulatory role. I think they [the commission board] should now consider their positions.

Fast forward 10 years and not much has changed. It is now called the Crofting Commission as opposed to the Crofters Commission. Similar but perhaps more acute criticism is being laid at its door. Indeed, I was speaking to a crofter just today who said that the Crofting Commission of 2016 is much worse than its predecessor, the Crofters Commission, was 10 years ago.

Headlines in the news over the past few weeks have included:-

Crofting Comission branded as ‘dictatorial, vindictive and unjustified’ by Upper Coll crofters

Row between national body and local crofters on Lewis deepens

Crofting Commission ‘flouting the will’ of Parliament

Crofting commissioner resigns in Lewis grazings row

Pressure grows on Crofting Commission as row over committees continues

Demands intensify for inquiry into operations of Crofting Commission

Crofting Commission “cover-up” blasted

Sleat storm surrounds Crofting Commission

Crofting Commission’s Mangersta U-turn welcomed, but calls for government investigation continue

It was in the wake of the near collapse of the Crofting Reform Bill in 2006 that pressure from the Scottish Crofting Federation led to Scottish Ministers commissioning a Committee of Inquiry on Crofting. This was chaired by Professor Mark Shucksmith. The Committee of Inquiry on Crofting undertook many community meetings throughout 2007 and delivered their final report in 2008.

The Shucksmith Report commented on the Governance of Crofting as follows:-

Crucial issues for the governance of crofting are transparency, source of legitimacy, accountability and the balance of central and local interests. Centralised arrangements,
together with a lack of clear functional boundaries between the key institutions, particularly
between the Crofters Commission and the Scottish Government, cloud the lines of public
accountability for the effective governance of crofting. Recurring themes in the evidence
were that the Commission should be more accountable; have greater area representation;
should enforce regulations more effectively; should be better aligned with other relevant partners; and should have closer communication with local people and Grazings Committees.

All issues that appear to remain today. Perhaps that is because in introducing the Crofting Reform (Scotland) Act 2010 the then Scottish Parliament ignored many of the recommendations actually contained in the Shucksmith Report.

There is currently a major crisis in crofting. The consensus of opinion appears to be that the problems are caused by the Crofting Commission and the decisions taken by them and manner in which they execute those decisions.

A recent online poll conducted by The Scottish Farmer indicated that 96% of readers who took part considered that the Scottish Government should enact an independent inquiry into the workings of the Crofting Commission.

The Scottish Farmer in conducting this poll stated:-

The level of criticism has mounted so quickly that it is now incumbent on the Scottish Government to institute an independent external audit of the commission.

And, if the Crofting Commissioners feel the criticism to be unjust, they too should welcome independent scrutiny of their actions.

One thing is for sure, Scottish ministers cannot continue to sit on their hands on this one. Action must be taken swiftly and decisively!

I sincerely hope that in 10 years from now we don’t look back and say that nothing has really changed and indeed the situation at the Crofting Commission has got worse not better. The Scottish Government has the opportunity to change the future and must now do so.

Brian Inkster

Image Credit: Back to the Future © Amblin Entertainment

Yes Crofting Minister

Yes Crofting Minister

James Hacker: You said yourself how important these select committees are. I cannot be seen to mislead them.
Sir Humphrey Appleby: You will not be SEEN to mislead them.

How the Crofting Commission played out their sudden and surprise U-turn on the question of ‘The Common Clearances‘ would not have been out of place in an episode of Yes Minister. Sir Humphrey Appleby would have delighted in the obfuscation and manipulation displayed by the Crofting Commission in Holyrood on Wednesday night. However, like Sir Humphrey, the Crofting Commission is not immune to making miscalculations or outright blunders.

It was the first meeting, since the latest Scottish Government was formed, of the Cross Party Group on Crofting within the Scottish Parliament.

It was the first time, since allegations of abuse of power within the Crofting Commission over ‘The Common Clearances‘ were made, that the Crofting Commission would meet eye to eye with politicians and other crofting stakeholders in a public forum.

In the preceding week or two damning revelations had been made of historical revisionism and flouting the will of Parliament on the part of the Crofting Commission. This was on top of votes of no confidence against them, the Convener of the Crofting Commission attending meetings despite a clear conflict of interest,  a Crofting Commissioner resigning and calls for the Scottish Government to investigate the whole matter.

It looked like the Commission would be in for a very rough time at the Cross Party Group meeting.

They knew that and had to do something quick and decisive to limit the damage being caused to them and that could be wrought on them at that meeting.

Nothing like a massive U-turn, with an attempt to dress it up in other ways, to achieve that.

So Crofting Commissioner, Murdo Maclennan (the Convener, Colin Kennedy, was conspicuous by his absence), announced to the Cross Party Group that he “thought we have a conclusion” on Mangersta and there was “no grazing constable in place at the moment“.

On being pressed for clarification on certain elements of this the Chief Executive of the Crofting Commission, Catriona Maclean, elaborated that:-

there is no constable at present, the case is over and the people of Mangersta will be advised.

So case closed and no further discussion on that then. Please move along ladies and gentlemen.

When the removal of the Upper Coll common grazings committee from office was mentioned that, of course, could not be discussed as it was subject to on going proceedings in the Scottish Land Court.

The third committee that the Crofting Commission have evicted from office was not mentioned at all, other than briefly by me when Commissioner Murdo Maclennan insisted that I declare my interests. I think that perhaps backfired on him as the Commission would rather pretend that episode never happened as there has, to date, been no publicity surrounding it.

So one case conveniently closed, one sub judice and one we can simply forget about. Thus nothing really to talk about.

The extra gloss on this being that new guidelines were being produced by the Commission and all would be well when these were issued and followed. My criticism of this approach is already well known. You have to get the law right first before you write guidelines about how to follow that law. The Commission’s viewpoint is that their interpretation of the law will follow “in due course”. Perhaps this is because their latest massive U-turn means they actually now accept the law to be as I have been setting it out to be on this blog for some time!

The U-turn is great news for the shareholders in the Mangersta Common Grazings and the former members of their grazings committee. It is a vindication of the position correctly maintained by them throughout.

It leaves the Crofting Commission with egg on their face however they try to dress it up. The Emperor’s New Clothes remains a theme, in so far as the Commission is concerned, post the Cross Party Group meeting.

In my next blog post I will reveal how the Crofting Commission not only ignore the law but lawyers who write to them concerning it. In a subsequent blog post I will explore the significance of the latest U-turn by the Crofting Commission and the possible repercussions thereof.

Brian Inkster

Image Credit: Yes Minister © BBC

Update – 2 July 2016: Ignore the law and the lawyers

The Commission is for turning

The Commission is for turning

No longer men or ladies of iron at the Crofting Commission

In a somewhat unexpected U-turn on the issue of ‘The Common Clearances‘ the Crofting Commission today admitted that it:-

regrets the conflicting advice the Mangersta Grazings Committee has been given over a considerable period of time in response to the investigations which took place due to a complaint made by a shareholder.

The Crofting Commission also confirmed that it has written to shareholders of Mangersta Common Grazings to advise that the grazings constable (appointed illegally in my opinion) has concluded his investigations and has stepped down enabling shareholders to appoint a new committee of their choice.

They also in particular stated:-

Following an evaluation of this case the Commission is drafting revised guidance and has reviewed its processes.

Catriona Maclean, Chief Executive of the Crofting Commission, said:-

The Commission acknowledges that Mangersta is an active crofting community and this matter has caused prolonged uncertainty and anxiety under which a line can now be drawn.  We look forward to working constructively with the new committee, once appointed, and other stakeholders in the future.

The dispute – which has massive implications for all crofting communities – centred on the Commission’s insistence that all revenue coming into Grazings Committees, mainly from government grants, should be distributed as personal revenue to individual shareholders.

In response to the Commission’s statement, the former members of Mangersta Common Grazing Committee stated:-

We are pleased and relieved that common sense has finally intervened and that this whole affair has been brought to a conclusion, with recognition by the Commission that we acted with integrity and in good faith at all times.

Latterly, we made our stand on behalf of the whole crofting community since the legal interpretation promoted by the Crofting Commission would, if implemented, spell the death of crofting on a communal basis.

We have never accepted that the funds obtained by the village for agricultural and environmental schemes should be distributed as personal income and we have no intention of doing so.

We continue to believe that there should be an inquiry into the functioning of the Crofting Commission.  Even more important, it is essential that crofting law is clarified on this and other matters where ambiguity may exist.

With crofting at a low ebb in many places, it is regrettable that so much time and resources have been devoted to this unnecessary dispute.  However, we welcome a line being drawn under it and will work constructively with the Commission and anyone else where it is in the crofting interest to do so.

In my next blog post I will look at the manner in which the Commission announced this U-turn and the possible reason for it. I will then, in a further blog post, explore the significance of this U-turn and the possible repercussions thereof.

Brian Inkster

Image credit: Prime Minister Margaret Thatcher (aka ‘The Iron Lady’) addressing the Conservative Party Conference at Brighton on 7 October 1980 with her famous speech in which she said “You turn if you want to. The lady’s not for turning”. (Pa/ PA Photos / TopFoto)

Update – 2 July 2016: Yes Crofting Minister

Update – 2 July 2016: Ignore the law and the lawyers